Allahabad High Court
Atar Singh vs State Of U.P. & Others on 13 July, 2012
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 3 Case :- WRIT - A No. - 399 of 2012 Petitioner :- Atar Singh Respondent :- State Of U.P. & Others Petitioner Counsel :- Siddharth Khare,Ashok Khare Respondent Counsel :- C.S.C. Hon'ble Pradeep Kumar Singh Baghel,J.
Instant petition pertains to an order dated 16.11.2006 passed by Commandant, 37th Battalion PAC, Kanpur, whereby petitioner's services have been terminated.
Brief facts of the case as stated in the writ petition are that the petitioner was initially appointed in the year 2006 as Constable. He was sent for training. While he was undergoing training, an order was passed by the Commandant 37th Battalion, PAC, Kanpur, terminating the services of the petitioner in terms of the U.P. Temporary Government Servant (Termination of Service) Rules, 1975 inter-alia on the ground that at the time of submission of his application, a criminal case under Sections 147, 149, 436, 427 and 307 read with Section 7 of the Criminal Procedure Code was pending against him. In the said case, he had surrendered on 31st March, 2005 and was admitted on bail on 1.4.2005. The said case was pending and concealing the said fact, he got the employment.
It is stated that the petitioner has been acquitted in the aforesaid criminal case by judgement dated 21.5.2011 passed by the Additional District Judge, Allahabad in Sessions Trial No.1065 of 2006. A copy of the judgment of the Additional District Judge, Allahabad is annexed as Annexure 2 to the writ petition. Petitioner has made a representation before the Director General of Police alongwith the copy of the said judgement of revocation of his termination order. The said application was rejected by the respondent No.3 vide order dated 16.12.2011. The respondent No.3 in his order dated 16.12.2011 has referred another Criminal Case No.218 of 2007 registered under Sections 420, 467, 468 and 471 of Indian Penal Code, which is still pending. In fact, the subsequent Case No.218 of 2007 has been initiated on the First Information Report of the respondent No.3 alleging therein that the petitioner has got employment by concealment of fact. On the said allegation, a First Information Report was lodged and the criminal case is pending.
I have heard learned counsel for the petitioner and learned Standing Counsel.
Sri Siddharth Khare, learned counsel for the petitioner has submitted that the petitioner was acquitted in the Criminal Case No.35 of 2005 wherein no major role was assigned to him and he was falsely implicated in the said case on account of enmity of the family.
Sri Khare has further submitted that the petitioner had no criminal background and there was no intention to mislead the authorities concerned. From the allegation in the First Information Report and the charge-sheet, it would be evident that no role was assigned to the petitioner in the said incident. Moreover, he has been acquitted in the said case. He has further submitted that from the perusal of the judgment of the trial court, it is clear that all the accused have been acquitted and the prosecution case was disbelieved by the trial court. As regards, the second criminal case, Sri Khare has urged that criminal case has been instituted after filing of the First Information Report on the instruction of the respondent No.3.
The Supreme Court had occasion to deal with somewhat is in the similar facts in the case of Commissioner of Police and others Vs. Sandeep Kumar, (2011) 4 Supreme Court Cases, 644. In the said case, one Sandeep Kumar had applied for the post of Head Constable (Ministerial). In the application form one of the declaration was that, in case, a candidate had ever been arrested, prosecuted, kept under detention or bound down/fined, convicted by a court of law for any offence, against the said column, the candidate therein wrote: "No". Later on it was found that the said statement was false as he and some of his family members were involved in a criminal case under Section 325/34 IPC and they were acquitted on the basis of compromise on 18.1.1998. This fact was concealed by the candidate therein. When the aforesaid fact with regard to a criminal case came to the notice of the authorities, they had issued a show cause notice to the candidate on the ground that he had concealed the fact of his involvement in the aforesaid criminal case. Thus, in view of the declaration in the application form, his candidature was cancelled.
Aggrieved by the said order, he filed a claim petition before the Central Administrative Tribunal, which was dismissed.
Feeling aggrieved against the order of the Tribunal, he filed a writ petition, which was allowed by the Delhi High Court. The Commissioner of Police filed a Special Leave Petition against the order of Delhi High Court. The Supreme Court upheld the judgement of the Delhi High Court, however, giving its own/separate reason. The Court held that when the incident happened, the candidate was about 20 years of age and young people often commit indiscretions. It is an apt to produce the relevant portion of the judgment hereunder:-
"8...........................When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives."
9. In this connection, we may refer to the character "Jean Valjean" in Victor Hugo's novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life."
The judgment of the Commissioner of Police (Supra) was followed in Ram Kumar Vs. State of U.P. and others, 2011 (4) ESC 634 (SC). The Supreme Court in this case also dealt a similar fact. The appellant therein, Ram Kumar had applied for the post of Constable and he submitted an affidavit wherein he made a statement that no criminal case was registered against him. He was selected and appointed as a male constable. In the meantime, the police station of his home district informed the authority concerned that a Criminal Case No.275/2001 under Sections 324/323/504 IPC was registered against Ram Kumar and in the said case he was finally acquitted by the Additional Chief Judicial Magistrate, Etawah on 18.7.2002. When the authorities came to know about the said fact, the selection of Ram Kumar was cancelled on the ground that he has submitted an affidavit stating wrong facts and concealing correct facts, therefore, his selection was irregular and illegal.
Ram Kumar had filed a writ petition under Article 226 before this Court. His writ petition was dismissed by the learned Single Judge on 30.8.2007 and it was held that since the petitioner therein (Ram Kumar) had furnished false information in his affidavit in the proforma verification roll, he was rightly terminated. Learned Single Judge of this Court had relied a judgment of the Supreme Court in Kendriya Vidyalaya Sangathan and others Vs. Ram Ratan Yadav, (2003) 3 Supreme Court Cases, 437. Feeling aggrieved by the judgment of the learned Single Judge, Ram Kumar filed a special appeal before the Division Bench which also came to be dismissed. He filed a Special Leave Petition before the Supreme Court wherein the Supreme Court relying on the judgment of Commissioner of Police and others Vs. Sandeep Kumar (Supra) allowed the Special Leave Petition and set aside the order of the learned Single Judge and Division Bench of this Court.
Relevant would it be to mention, the Supreme Court distinguished its earlier judgment in Kendriya Vidyalaya Sangathan Vs. Ram Lakhan Yadav (Supra) on the ground that, in that case, the matter pertain to appointment of a physical education teacher. Against him a criminal case has been registered under Sections 323, 341, 294 and 506B read with Section 34 IPC. The Supreme Court held that a person against whom criminal case was pending, could not be suitable for appointment as the character, conduct and antecedents of a teacher will have some impact on the mind of the students of impressionable age.
Sri Khare has also relied of the judgment of Surendra Singh Yadav Vs. Union of India and another, 2011 (1) ADJ 689 (DB). The Division Bench of this Court has laid down the law in similar terms.
Learned Standing Counsel has relied on the judgment of Dinesh Chandra (Recruit Constable) Vs. State of U.P., Writ -A No.25047 of 2008. In the said case also, the selection of the petitioner therein as a constable in Provincial Armed Constabulary (for short PAC) was cancelled during the training, on the ground that he had made false declaration that no criminal case was pending against him. The police verification revealed that a criminal case under Sections 323, 504, 324 and 325 IPC was registered against him at the time of submission of application for recruitment. It was alleged that concealing the said fact, he was selected. The writ petition of petitioner therein was dismissed.
I have perused carefully the judgment of Dinesh Chandra's case. The judgment was delivered on 14.12.2011, however, two judgments of the Supreme Court, Commissioner of Police and others Vs. Sandeep Kumar (Supra) and the judgment of Ram Kumar Vs. State of U.P. decided on 19th August, 2011 were not notice by the learned Single Judge. For the said reason, the judgment of Dinesh Chandra is a per incurium.
Apart from the aforesaid fact, in the Dinesh Chandra (Supra), the learned counsel for the petitioner therein had raised only one submission that the order was passed in violation of the principle of natural justice as it was admitted case that there was a concealment of fact, the learned Single Judge relying on the judgments of Supreme Court in S.L.Kapoor Vs. Jagmohan and another, AIR (1981) SC 136 and Aligarh Muslim University Vs. Mansoor Ali Khan, (2000) 7 Supreme Court Cases, 529, it was held that if on the admitted and indisputable fact only one conclusion was possible, then giving opportunity would be "useless formality". The principle of "useless formality theory": was followed by the Supreme Court in other case also.
Having heard learned counsel for the petitioner and having considered the rival submissions, I am of the view that the facts of the case is squarely covered by the judgment of the Supreme Court in the case of Commissioner of Police and others Vs. Sandeep Kumar, Ram Kumar Vs. State of U.P. and judgement of this Court in Writ Petition No.3543 of 2007 wherein law laid down in the aforesaid two judgments have been followed. It is not disputed that advertisement was published in the year 2006 and petitioner had submitted his application in pursuance of the said advertisement within time of submission of the application. The petitioner was aged about 20 years and when the alleged incident had taken place, he was only 18 years old. In the judgement of the Supreme Court, the facts were identical. In that case also the constable whose services were terminated, was less than 18 yeas of age when he was involved in a criminal case.
In view of aforesaid fact, the impugned order dated 16.11.2006 passed by respondent No.3 is set aside. The writ petition is allowed.
The end of justice would be served, in case, the petitioner is directed to be reinstated, however, with 50% of the backwages.
Order Date :- 13.7.2012 SKD